December 7, 2015
A. Beattie, assigned counsel, for the appellant (defendant).
N. Feldman, special deputy assistant state's attorney,
with whom, on the brief, were Scott J. Murphy, state's
attorney, and Christian Watson, assistant state's
attorney, for the appellee (state).
Timothy H. Everett, Todd D. Fernow and Elisa L. Villa, and
Thadius Bochain, Robert Fontaine and Benjamin Haldeman,
certified legal interns, filed a brief for the Connecticut
Criminal Defense Lawyers Association as amicus curiae.
Rogers, C. J., and Palmer, Zarella, Eveleigh and McDonald,
defendant, Terry P. Herring, appeals from the judgment of the
Appellate Court affirming his conviction, rendered after a
jury trial, of conspiracy to distribute one kilogram or more
of a cannabis-type substance in violation of General Statutes
§§ 21a-278 (b) and 53a-48, and possession of one
kilogram or more of a cannabis-type substance with intent to
sell as an accessory in violation of § 21a-278 (b) and
General Statutes § 53a-8. State v.
Herring, 151 Conn.App. 154, 155, 173, 94 A.3d 688
(2014). The Appellate Court concluded, inter alia, that,
under the waiver rule announced in State v.
Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011),
the defendant failed to preserve his claim that the trial
court had incorrectly instructed the jury on the state of
mind required to find him guilty of both
offenses.See State v. Herring,
supra, 170-71. On appeal to this court, the
defendant does not challenge the Appellate Court's
conclusion that he waived his jury instruction claim under
Kitchens. Instead, he requests that the waiver rule
in Kitchens be overturned and that his claim be
reviewed under State v. Golding, 213 Conn.
233, 239-40, 567 A.2d 823 (1989). He contends that, if this
court reviews his claim under Golding, he would
prevail because the trial court's instruction resulted in
harmful error. In the alternative, the defendant seeks review
under the plain error doctrine. Our resolution of the
defendant's request to overturn the waiver rule is
controlled by our decision in State v.
Bellamy, 323 Conn. 400, 403, ___ A.3d ___ (2016), in
which we considered the rule's continued viability and
concluded that it should not be overturned. Accordingly, we
reject the defendant's request to overturn the waiver
rule in Kitchens and to review his jury instruction
claim under Golding. We also decline to review his
claim under the plain error doctrine because such review is
beyond the scope of the certified question.
judgment of the Appellate Court is affirmed.
opinion the other justices concurred.
ROGERS, C. J, concurring.
reasons explained in my concurrence in State v.
Bellamy, 323 Conn. 400, 454, A.3d (2016), I continue to
adhere to my belief that we should overrule our opinion in
State v. Kitchens, 299 Conn. 447, 10 A.3d 942
(2011), thereby reinstating the much narrower conception of
implied waiver of claims of jury instructional error that
predated Kitchens. See State v. Bellamy,
supra, 454-55. Under the unique circumstances and
for the limited purpose of the present appeal, however, I
concur with and join the majority opinion.
PALMER, J., with whom McDONALD, J., joins, concurring.
continue to adhere to the views expressed in my concurrence
in State v. Bellamy, 323 Conn. 400, 466, A.3d
(2016), with respect to the law of implied waiver as applied
to jury instruction claims. Under the unique circumstances
and for the limited ...